Opinion issued August 17, 2023

In The 

## Court of Appeals For The 

## First District of Texas

—————

——————— NO. 01
- 19
- 0018 2
- CV

——————————— JOHN E. DELOACH, INDIVIDUALLY, JOHN E. DELO A CH AS GENERAL PARTNER OF JOHN E. DELOACH FAMILY LIMITED PARTNERSHIP, AND JOHN E. DELOACH FAMILY LIMITED

PARTNERSHIP , Appella nt s

V. STEPHEN STELLY , Appell e e
On Appeal from the 253rd District Cou r t Chambers County, Texas Trial Court Ca se No. CV29534

MEMORANDUM OPINION ON REMAND Stephen Stelly sued John E. DeLoach, individually and as general partner of the John E. DeLoach Family Limited Partnership (“the FLP”), and the FLP , for2

breach of contract and trespass to try title

. Stelly alleged that DeL o ach improp erly failed to transfer title to a 600

- acre tract of land and some e quipment for which he paid DeLoac h in installments beginning in 2000. A j ury found in fa vor of Stelly, and the trial cour t entered judgment on the verdict. The FLP filed a post

- j udgment motion for judgment n.o.v., arguing , among other things , that the claim s w ere barred by the four

- year statute of limitat ions for contract claims. On original submis sion of the appeal, we revers ed and rendered judgment for appellan ts on the single g round that the statu te of limitations had run on Stelly ’ s breach of contract claim , fu rther con cluding that Stelly had not pleaded a claim for trespass to try title. DeLoac h v. Stelly , 644 S.W.3 d 195, 201 (Tex. App.

— Houston [1st Dist.] 2020), rev ’ d , 644 S. W.3d 657 , 658 (Tex. 2022)

. The Texas Su preme Court reversed, holding that under Bruml ey v. Mc Duff , 616 S.W.3d 926, 932 (T ex . 2021), “ Stelly adequately pleaded a trespass

- to

- try

- title claim a nd acqui r ed equitable title upon completing payment to DeLoach for the original loan amount. ” Stelly v. DeLoach , 644 S.W.3d 657, 659 (Tex. 2022 ) . The
S upreme Court remand ed the case to us for fu rther proceedings. Id. at 660. On remand, we con sider appellants ’ rema i ning issu es , and we affirm the judgment of the trial court

.3 B ackground The underlying facts and procedural history are well

- known to the parti es and have been set out in our prior opini on as well as the Texas S upreme C ourt ’ s opinion. We th erefore limit our disc u ss ion of the fact s to those relevant to the remaining issues. Stelly is a lifelong farm er . In 1998, he was farming land leased from Del ta Ric e Producers ( “ DR P ” )

. DeLoach was a long

- time fa mily friend, having known Stelly ’ s parents f

or year s. DeLoach owne d land, which he sometimes farmed , but his income derived from his ownership and operation of a wastewater injection well

. In late 1999, De L oac h agreed to finance land and equipment that Stelly would use to farm sugar can e, as part of Stelly ’ s plan to crea t e a sugar can e
grower s ’ co - op and eventually build a sugar mi ll. In mid

- 2000 , DeLoach , on behalf of the FLP , entered into an earnest mo ney

co ntract with DRP to buy the 600 acres at issue here , which included the land that Stelly had been leasing. The e ar n est money contract provided a legal description and s tated a purchase price of $330,000

. Stelly testified at trial that he and DeLoach h ad a gr eed to purchase the pro perty together , but DeLoach cross ed through Stelly ’ s name on the e a rnest money con t ract , purportedly to allow DeLoach to obtain his preferred financing

. Stelly also testified that he pr ovided the $50,000 earnest mone y through a lo an from hi s bank

. The loan agreement between4

Texas Cane Services, the name in which Stelly did bu s iness, and his bank was admitted into evidence , along with the assume d name record showing Stelly ’ s ownership of Texas Cane Services

. The loan was dated Se pte mbe r 28, 2000 , which was several days before closing on the p urchase of the 600 acr e s , which o ccurred
on Oc tober 13, 2000

. Stelly testified that when DeLoach crossed through his name on the earne st money contract, he dra fted a handwritten contract to p rot ect what he believe d would be his interes t in the land

. At trial, Stelly said: “I didn’t want to just give him all of this money and buy the property from him and not have something in writing showing that I was buying the property from him.” B oth Stell y a nd
DeLoac h signed the contract a t the same time DeLoach signed the e arnest money
contract

. T he handwritten contract stated :

Mutual Agreement of Partnership Between Stephen B Stelly and Joh n E DeLoach and John E DeLoach FLP Terms of agreement to Partners St e ph en agr ees to manage, support , find help for the land operations of the FLP ’ s Proper ty. Farm the land for the FLP to the best of his ability with no charge for the equipment owned by Ste phen. John agrees 1 st to finance FM 1663 600 acre s fo r Stephen. 2 nd a ll harve sti ng equipment needed by Stephen. 3 rd ag rees to pay Stephen $3500 monthly fo r his man aging of the FL P ’ s property and any additional labor and supplies ne eded.5 Stephen agrees to pay J o hn the total notes, taxes any [sic] fees for th e 600 acres on F M1 663, a lon g with all notes on equipment financed by John. Upon final payment of pro p erty, Joh n will deed property over to Stephe n . Same with all equ ipment purchase d

. The FLP purchased the property for $330,000 , with a mortgage from Capital
Farm C r edi t

. A r o und the same time, the FLP also purchased equipment for harvesting and transporting sugar cane. Stelly conceded at trial that the 600 acres were owned wholly in FLP ’s name , but he said that he paid off the land and
equ ipment in accordance wi th th eir agr eem ent. Accordi n g to Stelly ’ s trial testimony, he made payments in several ways. He obtained a loan of $50,000 just before closing on the land purchase. He made some payments to De Loach or the FLP by check from his Texas Cane Services account or by pers ona l c heck. S telly also directed income owed to h im from harvesting
sugar can e to be paid to DeLoach or the FLP. Stelly ’s ledger reflecting his business accounts and payments made to
DeLoa ch or the FLP was admitted at trial al ong with his backup do c umenta tio n
t hat provided support for the ledger entries. The backup documentation admitted at trial included the loan document for the $50,000 earnest money loan ; checks signed by Stelly and by his accoun tant, William Haynie, w ho did not testify at trial ; checks th at referen ced that the payment was for the 600 acres, the “ land , ” property tax , or equipment ; a p roperty tax receipt ; and information regarding the cane harvesting and hauling business. Stelly te stif ied that he did no t have backup6

documentation to suppo rt eve ry item in his ledger because some documents were lost in a house fire. At trial, Stelly said th at he had owed a total of $514,050 for the land and equipment , an d when he looked a t the numbers a fter he filed the lawsuit, he realized that he had paid a tot al of $773,640 , in dicating th at he overpaid by $259,140.82. When asked at trial how he happen ed to over pay what he owed , Stelly said: “ When you ’ re farm ing, it don ’ t take m uch to spend $200,000 , ” and he conceded that he had not added up all the paymen ts unt il after he filed suit. At trial, Stelly said that he was aware th at there w as still a balance of about $130,00 0 on the mor tgage despite h is hav ing pai d DeLoach and the FLP in full. Stelly te s tified : “ Mr

. DeLoach didn ’ t pay the note. He ’ d take th e m one y. I don ’ t know what he did with the money. I gave it to him. ” Stelly also testified that he paid taxes on the land. 1 Stelly testified that he owned the pro perty

. W hen asked

1 Stelly produced one check for payment of pro perty taxes in 2014

. Stelly testified about the payment of taxes on direct exam ination. He was aske d, “ [H]a ve you pa id all of your taxes on you r pr o perty taxes [ sic ] ? ” Stelly replied: I pay my taxes pretty much every ye ar, yes, sir.
T he appellant s ’ counsel questioned Stelly about property taxes: Q. [W]hen we go back t o the

— t o the Mut ual Agreement o f Partnership [the handw ritten agreement ] , it says that you will also pay all of the taxes as they come due. Is that correct? A. Tha t ’ s correct. Q. And you ’ ve got one payment of $1 , 691 since 2000? A. That ’ s correct. Q. Okay. I s that all of the taxes? A

. No, sir . Every y e ar there ’ s taxes.7

when he acquired title to the prop erty, Stelly said : “ Well, I assumed I o wned i t

a fte r the money got paid. There never was any other assumption. ” In 2005, DeLoach , on behalf of the FLP , and Stelly, both signed as grantors on a deed
tra n sfer ring 2.32 acres of the 600 acres to Stelly ’ s parents to use as a homestead. In 2015, years aft er DeL oach first fell on financial hard times

— Stelly testified that DeLoach was “ broke ”

— DeLoach asserted to Stelly that h e was the sole owner o f the 600 acres and that he in tended to se ll t h e property. Soon ther eafter, Stelly filed this la wsuit. 2
The case was tr ied to a jury. Rel evant to the issues remaining on a ppeal, t he jury determined that:
1. DeLoach, as general partner of the FLP , and Stelly a g reed that DeLoach, as general partner of the FLP, would transfer the deed to the 600 acres to S telly upon Stelly co mpl ying with the terms of the agreement. 2. Stelly did not fail to comply with the agreement. 3
Q. And so you haven ’ t pa id the rest of them. A. Was that a question. Counsel for appellant: Strike that, Your Honor.

2 John E. De Loach died while this case was pending in the trial court.

3 This question in clud ed t he following i nstructi o n: A failure to com ply must be material . The circumstances to consider in determining whe ther a failure to comply is material i nclude: 1. T he exten t to which the injured party will be deprived of the benefit wh ich he reasonably ex pecte d; 2. T he ext ent to which the injured part y can be adequately compe nsated for the part of that benefit of which he will be deprived;8

3. DeLoach, as general partner of the FL P, failed to comply with the agreement by refusing to deed the prop erty to Stelly. The trial court entered judgment on the ver dic t , which provided:

. . . . IT IS THEREFORE ORDERED , ADJUDGED, AND DE CLARED that (1) plain tiff Stephen Stelly is the owner of the real property just as if defendants (and their h eirs and assigns) had conveyed the property to plai ntiff Stephen Stelly b y w arr anty deed; and (2) defendants (and their heirs and assigns) hereby have no interest in th e real property and pl a intiff ’ s ownership interest is free and clear of any and all interests defendant (and their heirs and assigns ) had in the real pr operty. 4
T he trial court denied the appellants motion for j .n.ov., and the appellan ts
app eal. A nalysis
T he a ppellant s raise d 1 2 issue s on appeal

. On orig inal submi s sion , we reversed the judgment based on the statute of limitations for contra ct clai ms. DeLoach , 644 S. W.3d at 201

– 02 , rev ’ d , 644 S.W.3d at 6 59

– 60

. We also concluded that , as to the c laim for title to the 6 00 acres, Stelly had not pleaded a claim for trespass to try title. Id. The Supreme Court of Texas reversed , holding th at the

3. T he exten t to which the party failing to perform or to offer to perform will suffer for feiture; 4. T he likelihood that the p arty failing to pe rform or t o offer to perfo rm will cure his failure, taking into account the circumstances including any reasonable assur ances; 5. T he extent to which the beha v ior of the party failing to perform or to off er to perform comports with standards of go od faith and fair deal i ng.

4 The tr ial court did not enter judgment requir ing specific pe rformance.9

s tatute of limitation s d id not apply to a claim for trespass to try title based on a claim of equitable tit le and that Stelly had ple aded a claim for tresp ass to try title bas ed on a claim of equita ble tit le. Stelly , 644 S.W.3d at 6 59

– 60

. B ecause trespass to t ry title does not ap ply to personal property, our prior holding that Stelly ’ s claim for recovery of the eq uipment is barred by l i mitations remains in effe ct. See T EX
. P ROP
. C ODE § 22.001(a) ( “ A trespass to try title action is the method of determining titl e to lands, tenem ent s, or other real property. ” );
Briscoe v. Go odmark Corp. , 102 S.W.3d 714, 716

– 17 (Tex. 2003) (explaining “law o f the case ” doctrine)

. Considering the Supre me C ourt ’ s holding in Stelly , in this opinion , w e do not need to address the follo wing issues : issu e 1 (s tatute of limitations for breach of contract) ; issue 2 (breach of contract remedy o f specific performance ) ; and issue s 9

– 11 (challe nges to the agreement to purchase equipment). See T EX
. R. A PP
. P. 47.1. In addition, i ssue 4 asserts t hat there was no evi den ce to support a theory of partnership liability. The trial court ’ s judgment in favor o f Stelly was not based on a partnership liabilit y theory. We therefore do not need to analyze appellants ’ arguments r egarding partnership liability. See i d.
On rem and, we consider issues 3 and 5

– 8 , which relate to Stelly ’s cla i m of equitable title. T h e appellants challenge t he admission of the agreement regarding the 600 acres into evidence at trial, an d they assert that the evidence is l egally10

ins ufficie nt to suppo rt th e jury ’ s f indings regarding breach o f the contract. Finall y ,

w e also consider issue 1 2, which argues the st atute of frauds.
I. Trespass to try title and equitable title

“ A trespass to try t itle action is th e method of determining title to lan ds,
tenemen ts, or other real property.” T EX
. P ROP
. C ODE § 22.001(a) ; see B r umley , 616
S.W.3 d at 831

– 33 ; Lance v. Robinson , 543 S.W.3d 723, 7 36 (Tex. 2018)

. “ The
t r espass - to

- try

- ti tle statute ‘ is typically used to clear problems in chains of title or
t o rec over posses sion of land unla wfully withheld from a rightful owner, ’ and the
p laint iff in such an ac tion must ‘ establish superio r title ’ to the property. ” Lance , 5 4 3 S.W.3d at 73 6 ( quoting Martin v. Amerman , 133 S.W.3d 262, 265 (Tex

. 2004) )

. A trespa ss - to

- t ry - title a c tion is “ the e xclusive remedy for re s olving

ove rarching claims to legal title. ” Bruml ey , 616 S.W.3d at 832. In a trespass

- to

- try

title action , a plaintiff may prove legal title by establishing: (1) a regular chain of title of conveyances from th e sovereign to the plaint iff; (2) a superior ti t le to that of the defendan t out of a common sour ce; (3) title by limitations (i.e., adverse possession); or (4) possession that has not been abandoned. Id. “[A] plaintiff in a trespass to try title su it may r ecover on t he strength of an equitable title as well as a legal one.” Neel ey v. Intercity Mgmt. Corp. , 623 S.W.2d 942, 951 (Tex. App.

— Houston [1st Dist.] 1981, no writ) (citing Johnson v. Wood , 157 S.W.2d 146 , 14811

( Tex. 1941)) ; accord Cullins v. Fo ster , 17 1 S.W.3d 52 1, 533 (Te x. App.

— Houston [14th D ist.] 2005, pet. denied)

.

“ ‘ Equitable title ’ is a rig ht, enforceable in equity, to have the legal title to real estate transferr ed to the owner of the right upon the performance of specified conditions. ” City of Hous

. v. Gu thrie , 3 32 S.W.3d 578, 588 (Te x . App.

— Houston [1st Dist.] 2009, pet. denied) ; accord Neeley , 623 S.W.2d at 950

– 51 (defining

“ equitable title ” as enforceable right to have legal title transferred to holder of equity)

. Equitable title vest s in a p urchaser up on payment of the p urchase price f or full performance of the obligations under the contract

. Johnson , 157 S.W.2d at 148 ; Haynes v. Molina , No. 01

- 19

- 00917

- CV, 202 1 WL 4155822, at *7 (Tex. App.

— Houston [1st Dist.] Sep t. 14, 2021, pet. den ied) (me m. op.) ( st ating that purchaser under contra c t for deed obtains immedia te right to possess property and

ac quires equitable title upon payment of full purchase price) ; Ferrar a v. Nutt , 555 S.W.3d 227, 240 (Tex. App.

— Houston [1st Dist.] 2018, no pet. ) ( same)

. II. Admission of the agr ee ment between Stelly a nd DeLoach I n their fifth issue, t he appe llants argue that the trial court erred by admitting exhibits P4 and P4A. Exhibit P4 is a copy of the original handwritten agreement between Stelly an d De L oach re garding the 600 acr es and the equipment. Exhibit
P4A is a typewritt en comparato r, admitted due to the limited legibility o f the handw ritten copy. T he appellants a rgue that the tr ial court ab used its discretion by12

admitting th ese documents becau se the best evidence rule requi re d that St elly provide the origi n al copy of the agreement

. T hey maintain that because the agreement was ex ecuted by Stelly and De L oach without witnesses, and bec ause De L oach was deceased by the time of trial, there w ere ques tions about the auth enticity of Exhibi t P4 , and it w as unfair to a dmit it with only Stelly ’ s biased testimony.

“ A reviewing court may not substit ute its judgment for that of the trial court
reg arding ‘ the resolution of fact issues or matters committed to t he trial co urt ’ s di scretion. ’ ” In re Mem ’ l Hermann Hosp. Sys. , 4 6 4 S.W.3d 686, 698 (Tex. 20 15) (citing Walker v. Packer , 827 S.W.2d 833, 839

– 4 0 ( Tex. 1992)). The admission of evidence is princi pally within the d iscretion of the trial court. Mem ’ l Hermann
H osp. Sys. , 464 S.W. 3d at 698 ( citing Flore s v. Fourth C t
. of A p peals , 777 S.W.2d 38, 41 ( Tex. 1989) )

. The Texas Rules of Evidence provide for the general admissibility of all evidence having any tendency to make a fact of consequence more or less probab le. T EX
. R. E VID
. 401 , 402; Diam ond Offshor e Servs. Ltd. v. Willi a ms , 542
S.W .3d 539, 544 (T ex. 2018) ; Martinez v. Kwas , 606 S.W.3d 446, 4 53 (Tex. App.

— Houston [1st Dist.] 2020, pet. denied) . We review a trial court ’ s admission of evidence for an abuse of d iscretion

. Caffe Rib s, Inc. v. State , 487 S.W.3d 137, 142 (Tex. 2 016); see Williams , 542 S. W.3d at 545 (“The trial court ha s extensive13

discretion in evidentiary rulings, and we will uphold deci sions within the zone of reasonable disagreement.”) . A trial co urt abuses its discr etion when it acts wit hout regard for any gu i ding rules. Caffe Ribs , 487 S.W .3d at 142

. Ordinar ily, “ [ a ] n original writing, record ing, or p hotograph is required in order to prove its content unless these rules [Texas Rules of Evidence] or ot her la w provide s otherwise

. ” T EX
. R. E VID
. 1002. “ A duplicate is admissible to the same
ext ent as the original unless a question is raised about t he original ’ s authenticity or the circumst ances make it unfair to admit the duplicate. ” Id. 100 3.
A t trial, the ap pellants objected to the au thenticity of both P4 a nd P4A and argued t h at the y were entitled to the see the orig inal. Stelly testif ied that he hand

- wrote the agreement , P4 , and ty ped it , P4A, to assi st his lawyers. He testified that both he a nd De L oach sign ed the document . He s aid th at he r eco gnized
De L oa c h ’ s signature, and he iden tified it on the handwritten agreement, P4. Stelly testifi ed that they immediately photocopied the documen t after signing it, and th at De L oach took the original , le avi ng him with a copy. He also stated that the photocopy, P4, accur at e ly reflected the original document , as did the type written comparator, P4A

.

“ To satisfy the requirement of authen ticating or identifying a n item of evidence, the proponent must produce ev idence suffic ient to support a fin ding that the item i s what the proponent claim s it is. ” T EX
. R. E VID
. 901 ( a). Such evidence14

may be s upplied by the testimony of a witness with knowl edge “ that an item is what it is claimed to be. ” Id. 90 1(b)(1) ; see Northp ointe LTC, Lt d. v. Durant , No. 01

- 22

- 00215

- CV, 2022 W L 17835223, at *5 (Tex. App

. — Houston [1st Dist.] Dec. 22, 2022, no pet.) (mem. op .) ( stating that document considered authentic i f
spo nsoring witness vouches for its authenticity)

. Ste lly vou ched for th e auth enticit y of the copy of t he agreement regarding the 600 acres and the equi pment. He provided detailed information demonstrating how and when the copy of the agreement came into existence, and he identified
De L oach ’ s signature. Considering Stelly ’ s te stimony, we c onclude that the t ria l court did not abu s e its discretion by admitt ing b oth exhibits, P4 and P4A. See Williams , 542 S.W.3 d at 545 ; Caffe Ribs , 487 S.W.3d at 142 . We over rule the fifth issue.
III. Legal sufficiency issues
In each of the re maining is sues

— issues 3 , 6, 7, and 8

— the app ellants argue, at l e ast in part, that t he evid ence is legally insufficient to support either a jury finding or an element necessary for the court to conclude that S t elly ha s equitable title to the 600 acres. A. Legal suffici ency standard of review Wh en an ap pellant challenges t he legal sufficiency of th e evidence supporting an adverse finding on an issue on which it did not have the burden of15

proof, it must demonstrate that no evidence supports the finding. Graham Cent.
Stati on, Inc. v. P eña , 442 S.W. 3d 26 1, 263 (Tex. 2014). “I n reviewing a verdict for
l egal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disrega rd contrary evidence unless reasonable jurors could not.” Kroger Tex. Ltd. P ’ ship v. Su beru , 216 S.W .3d 7 88, 793 (Tex. 2006) (c i ting City of Keller v. Wil son , 168 S.W.3d 802, 827 (Tex. 2005)). We will sustain a legal sufficiency challenge if the record sho ws that: (1) there is a complete absence of evidence of a vital fact, (2) rules of law or evidence b ar th e c ourt from giving we i ght to the only evidence o ffered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintil la, or (4) the evidence establishes conclusively the opposite of the vital fact. City o

f Keller , 168 S.W. 3d at 810. “Evidence d o es not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” Sub eru , 216 S.W.3d at 793 (quoting Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 20 04)).
B. The existenc e o f a binding agreeme n t between De Loach and Ste lly is supported by legally sufficient evidence. (Issue 6) In their sixth issue, the appellants argue that the evidence was legally insufficient to support a conclusion that De L oach and Stel ly had a valid con tra ct. To prove the ex i stence of a va lid contrac t, a “ plaintiff must establish that (1) an offer was made; ( 2 ) the other party accepted in strict comp liance with the ter ms of the offer ; (3) the parties had a meeting of the mi nds on the es sential terms of t he16

contract (mutual as s ent); ( 4 ) each party cons ented to those terms ; and ( 5 ) the parties executed and delivered the contract with the intent that it be mutual and bindi ng . USAA Tex. Lloyds Co. v. Menchaca , 545 S.W.3d 479, 50 1 n.21 (Tex. 2018) ; see also In re 24R, Inc. , 324 S.W

. 3d 564, 567 (Tex. 2010) ( per curiam) ( stating that mutuality of obligation is r equired for contract formation ) ; S.C. Maxwell Fa m . P ’ ship, Ltd. v. Kent , 472 S.W.3d 341, 345 (Tex. App.

— Houston [1st Dist.] 2015, no pet .) ( “ Under the o rdina ry principles gov e rning the formation of co ntracts in Texas, consideration is a necessary requirement for the formation of
a contract. ” )

. 1. C onside ration First , the appellants argue that there was no evidence that the agreem ent was
suppo rted by co nsider ation because Stelly r e lied in part on his own t estim ony without supporting bank reco rds to prove the amount of money that he paid DeLoach. They rely on Mooring v. McBride , 62 Tex. 309 , 188 4 WL 8909 ( 1884) , for the proposition that proof of payment cannot be m a de solely on the declara tion of the purchaser. In Mooring , the only proof of title presented by the appellee was

“ decla rations made by [the purp orted equitable title holder] while he was in possession of the l and. ” 188 4 WL 89 09 , at *2. Nothing in tha t opin ion suggests that th e subsequent purchaser relied on sw orn testimony , as opposed to hearsay17

statements

. 5 See id. And a par ty ’ s testimony that he paid installments on a purchase of property is not per se invalid. E. g. , Cullins , 17 1 S.W.3d at 534 (holdi n g tha t purchase r ’s tes tim ony , in addition to other evidence, created fact question sufficient to defeat summar y judgment in tre spass - to

- try

- title suit ). Here, the evidence that Stelly paid the purchase price includes h is own testimo ny, which was subject t o a c redibili ty determina tion by the jury. We canno t substitute our credibility determination for th at of the jury. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003 ) (reco gnizing principle that jury is sole j udge of witness c redib i lity)

. The ev idence also includes : (1) a loan agreement for $50,000 to Stelly ’ s business, Texas Cane Services, whi ch Stelly testif ied represented the earnest money ; (2) a payment ledger showing p ayments to DeLoach and the FL P for la nd and property taxes ; and (3 ) bac kup do cumentation , includ ing canceled checks. Stelly ’ s proof that he paid the purchase price and

com plied with the agreemen t was not lim ited to his own statemen ts , and it was legally suffic ient to support the ju d gment

. See Suberu , 216 S.W .3d at 793

. Stelly also provid ed proof that he paid property taxes. He provided a check ,

a receipt , and his own testimony. Reaso nable jurors could have believed that some of his rec e i pts or canc eled ch ecks were lost in his ho use fire. Stel ly answer ed the question o f w het her he had paid all the property taxes by saying : “ I pay my taxes

5 The opini o n suggests that the declarations may have been made as much as ten years before trial

.18

pretty much every ye ar, yes, sir. ” When asked on cross

- examination about the document ation for only one year ’s prop erty tax, he said that was no t all because “[e]very year ther e ’s taxes. ” A reasonable jury could have considered Stelly ’s testimony and conclude d th at his answers indicated that he paid the property taxes. While his answers were not, pe rhaps, a model of clarity, S t elly ’s testimony an d the d ocumenta ry evidence admitted at trial do not show a complete absence of evidence that he paid the property tax, nor does the evidence conclusively establish that he did not pay property tax. See City of Kell er , 168 S.W.3d at 810. The evidence here i s more than a s cintilla, and the jury, in it s role of determining credibility of the witnesses, could have reasonably believed that Stelly paid the property tax as required by the handwritten contract. See City of Keller , 168 S.W.3d at 8 10. We con clude tha t the evidence is legally sufficient to supp ort a findin g that the contract was supported by consideration. Id. ; see also Suberu , 216
S.W .3d at 793

.

2. P urchase price and legal descri ption of the property S econd, t he appellants argue that there was no eviden ce to e stablish a definite purchase price fo r the 600 acres or a specific legal description of the r eal
prope rty. To be sufficient to s atisfy the Statu t e of Frauds for an agreement relating to real esta te conveyances , “the w r iting must furnish within i tsel f, or by refere nce to some other existing wr iting, the means or data by which the land to be conve yed19

may be identified with reasonable certainty. ” Davis v. Mueller , 528 S.W.3d 97, 101 (Tex. 2017) (quot ing M o rrow v. Shotwell , 477 S.W. 2d 538, 539 (T ex. 1972 )). The Supreme Court has already said that the descri ption of the 600 acres in the parties ’ agree ment as “Farm #2504 on Hwy 1663 and Oak Island R d ” was sufficiently certain to allow the parties to iden tify it. See Stelly , 6 4 4 S.W.3d at 659.
A t trial, Stel ly testified th at the purchase price was $33 0,000 . In addition, an earnest money contract for the property was admitted . Stelly testified that the earnest money contract was signed at the same time as t he agreement between h i m and De Loach. The earnest mone y contract and warranty deed include a legal description o f the property . The earnest money contract and Stelly ’ s tes timony indicate that the purchase price was $330,000

. This is some evidence of t he legal descripti on a n d th e purchase price

. See, e.g. , DeW itt Cnty. El ec. Co

- op., Inc. v. Parks , 1 S.W .3d 96, 102 (Tex. 1999) ( “ Under generally accepted principles of
contr act interpretation, all writings that pertain to the same transaction will be consi dered together, even i f they were executed at different tim es and do no t

e xpressly refer to one another

. ” ). We conclude that there was legally sufficient evidence of the pro perty description and purch ase price. See Suberu , 216 S.W .3d at 793

. In addition, in is sue twelve, the appell a nts argue th at the handwritten

a greement violat ed the S tatute of F rauds beca use the agreement does not20

sufficiently describe the property to be conveyed or include a purchase price. Considering our conclu sion that there was legally sufficient evidence o f the
pro perty description and purc h ase price , we further hold that this is not a valid basi s for a S t atute of F r auds challenge.

3. M utual assent Third, the appellants argue that there was no evidence of mut ual assent or of a meeting of the minds. “ Evidence of mutual assent in written contract s generally

con sists of signatures of the p a rties and delivery with the intent to bind. ” Baylor
Univ. v. Sonnichs en , 221 S.W.3d 632, 635 (Tex. 2007) . The signed agreement was properly adm itted into evidence at trial, and Stelly testified that D eLoach signe d the document , retained the original, and g ave him a duplicate that was made at the time it was signed. There was no evidence t o the contr ary. Two of DeLoach’s stepdaughters testified that they were co

- executors of his estate, and that they had looked thr ough his papers after his dea th. Neither of them testified that the signatu re on the agreement wa s not DeLoach ’ s. We therefore c onclude that there is legally sufficient evidence that DeLoach signed the agreement and of mutual

asse nt. See Suberu , 216 S.W .3d at 793

. In addi tion, in issue twelve, the a ppellants argue th at the handwritten agreement violated th e S tatute of F rauds because there was no evidence that DeLoach signed the agreeme nt. Because we conclude that legally sufficient21

evidence supports a findi ng that DeLoach signed the agreement, we fur ther hold that this is not a valid basi s for a S t a t ute of F r auds challenge. C. The evide nce is leg ally sufficient to support a conclusion that Stelly co mplied with the handwritten contract. (Issue 3) ( I ssue 7 ) In th eir third issue, the appellants argue that S telly failed to o btain jury findings that show h e h as equitable title in the 600 acres. In the seventh issue, the appellants a rgue that there was no evidence that Stelly complied with the agreement regarding the 600 acres becaus e a negative answer to the q uestion whether a party “ fai led to comply with a c o ntract ” is not the same a s a finding that a party complied with a contract. In this case, t he Texas S upreme Court has a lready held that the questions in the jur y charge were su fficient to support a claim for equitable title:
T he jur y found that an agreem e nt existed between DeLoach and Stelly, that Stelly had not breached the agreement, and that DeLoach had failed to comply. Under our precedents, this jury determi nation is suffic ient to find that Stelly was “vested with an equitable t itle to the property s u fficient to enable him to maintain his action in trespass to try title.” Johnson v. Wood , 138 Tex. 106, 157 S.W.2d 146, 148 (Tex. [Comm ’ n Op.] 1941). Stelly , 64 4 S.W.3d at 660

. While this statement is not a determination of the suff iciency of the evidenc e to support the jury verdict, it is a determination of the adequac y of the charge to support the c ause of action. In their seventh issue, t he appellants rely o n A rbor Windsor Court, Ltd. v. Weekley Homes , LP , 46 3 S.W.3d 131, 141

– 42 (T ex. App.

— Houston [14 th Dist.]22

2015, pet. denied) , for the proposition t hat the char ge and the evidence do not support a jury finding that Stelly complied with the handwritten contra c t. S pecifically, they argue that there is n o evidence that Stelly pai d the property taxes.
W e have already explained why the evidence is legally sufficient to support a jury verdi ct that Stelly complied with the re quirement to pay taxes.
I n Arbor Windso r Court , t he cour t of appeals held that a ne gati ve answer to a jury qu estion mean s that the p arty with the burden of proof failed t o carry its burden. Id. at 141. In that case, Arbor Windsor Court sued Weekl ey Homes for breach of contract, and Weekle y Home s countersued for breach of contract. Id. at 134

. The jury found that Arbor Wi ndsor Court failed to c o mply with a condition preced ent, and on appeal Arbor did not dispute that finding. I d. at 135. The jury also found that Weekley Homes failed to comply wit h the contract , a nd Arbor Windsor Court did not fail to comply with the contra ct. Id. The tr i al court rendered take

- nothing judgment in favor of We ekley Homes. Id. On appeal, Arbor Windsor
Court argued that the jury ’ s finding that it fa iled to comply with a condition
prece dent was immaterial becau se the jury also fou nd that it did not fai l to comply with the contract. Id. at 136. Thus, Arbor Windsor Court argued that the jury had found that it complied with the agreement and W eekley Homes did not , and Arbor Windsor Court so ught judgment in its favor. Id.23

T he court o f appeals held that th e jury did not find that Arbor Windsor Court complied with the contract. Id. at 141. The court explained that Weekley Homes, the counter

- plaintiff, had the burden of p roof on the question o f wh e ther Arbor Windsor Cou rt failed to compl y with the agreement. I d. The court of appeals

con cluded that “ the jury ’ s negative answer me ans no more than Weekl ey failed to meet its burden to show that Arbor failed to com ply with the contra ct. ” I d.
H ere, the appellants did not have a counterclaim. 6 Stelly had the burden o f proof on all affirmative issues on his trespass

- to

- try

- title claim. The jury found that the agreement required Stelly to perform by pa ying the amounts owed before
De Loac h , as general par tne r of the FLP, had an obl igation to transfe r the deed. The jury f o und that Stelly did not fail to comply , but DeLoach, as general partner of the
FL P, did fail to comply. Construing these jury answers together, in this case, the jury ’ s v e r dict is a findin g that Stelly complied with the agreement bec ause DeLoach ’ s failure to comply could only have occurred after Stelly first complied. The appellants ’ r eliance on A rbor Windsor Court , 46 3 S.W.3d at 141

– 42 , is therefore mispl aced.

6 While they had a n affirmative defense of lim itations, no jury questions regarding that d efense were submitted, and limitations is not part of the scope of this opinion on remand.24

D. Legally suf

ficient evidence support s the jur y ’s finding s that De Loach di d not comply with the a greement . (Issue 8 ) In their eighth issue, the appellants argue that there is no evidence that they failed to comply with the handwrit ten agreement as to the 600 acres. Th eir argument reit erates their contentions ab out the lack of e vidence that Stelly pa i d taxes and asserts that because Stelly did not comply with the handw ritten agreement, t hey were not required to transfer the deed to the 600 acres to him. We have already addressed why tho se contentions are wrong. W e note, additiona lly, that Stelly testi f

ied , multiple times, that he never received the d eed. Considering our conclu sion that that Stelly co mplied with the agreement and his undisputed testimony that the deed was never transferre d, w e hold that the evidenc e is legally suf ficient to support the jury ’ s determination that DeLoach , as gene ral partner of the FLP, failed to com pl y with the agreement. Conclusion We overrule issues 3, 5

– 8 and 12, and we affirm the trial court ’ s j udgment.

Peter Kelly Justice
Panel consists of Justices K elly, Landau , and Farris.